Freedom of contract in marriage

Alex Tabarrok writes:

I think it's time to restore freedom of contract to marriage. Why should two men, for example, be denied the same rights to contract as are allowed to a man and a woman? Far from ending civilization the extension of the bourgeoisie concept of contract ever further is the epitome of civilization. Our modern concept of marriage, for example, is simply one instantiation of the idea of contract.

I'm generally sympathetic with that idea, and have spelled out a contractual approach to marriage in Calling a Truce in the Marriage Wars (with Buckley), 2001 University of Illinois Law Review 561, and A Standard Form Approach to Same Sex Marriage, 38 Creighton Law Review 309 (2005).

My basic qualifications are these: First, "freedom of contract" does not necessarily preclude having the state offer a limited number of standard forms. We do that, for example, with business associations.

Second, the state does restrict contracting in various ways. Marriage is no exception. That would include penalizing or attaching costs to relationships outside the accepted state standard forms. But these limitations can be relaxed to some extent by permitting jurisdictional choice as to standard forms.

Third, states may subsidize certain relationships but not others. With respect to marriage, the subsidy is a way of developing and enforcing social norms, which affect everybody, and not just the parties to the contract.

None of this is to say that I, for example, favor particular limitations on marriage. It is to say that deciding on the regulation of marriage implicates broad principles about what sorts of things society should and shouldn't regulate, and how. I might not want to limit any aspects of marriage, but I've got to live in a society with people who have different views.

So calling marriage a contract, and generally embracing "freedom of contract" only begins the analysis.

Comments

[Tom Grey - Liberty Dad]

Setting up standard legal forms for two same-sex individuals to get all the contractual benefits of "marriage" would be good -- I'd call them civil partnerships.

One of the main unspoken issues in support of "gay marriage" is to get adoption of the benefits, and then to impose Hate Speech penalties on any Christian who claims homosexual conduct is sinful.
(as was done in Sweden against a minister, conviction overturned on appeal)

"Marriage" is for the kids who are the progeny of man-women sexual relations.

So yes to contractual benefits, no to same-sex marriage.